In an unusual care and control case, a Saskatchewan man was acquitted of impaired driving despite being in the driver’s seat while intoxicated by alcohol.
On the night in question, the accused and some friends were at a powwow. The accused consumed alcohol and another person was designated to be the driver. That designated driver was not consuming alcohol, but also did not have a driver’s licence.
The officer testified that he saw a vehicle cross the center line and initiated a traffic stop. He told the court that he found the accused person in an intoxicated state in the driver’s seat of the car. The accused was charged with having Care and Control of a motor vehicle while impaired.
Section 258(1) of the Criminal Code defines Care and Control as:
Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or railway equipment, the accused shall be deemed to have the care or control of the vehicle, vessel, aircraft or railway equipment as the case may be, unless the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment as the case may be.
The legal presumption can be rebutted if the accused person can show, on a balance of probabilities, that they were not in the driver’s seat for the purpose of putting the vehicle in motion,
The judge in this case quoted the Supreme Court of Canada to further explain the law:
 In Boudreault, the Supreme Court stated that the intention to drive the vehicle is not relevant or pertinent to the charge of care and control, but did describe the essential elements of “care and control” within the meaning of s. 253(1) as follows:
- (a) an intentional course of conduct associated with a motor vehicle;
- (b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and
- (c) in the circumstances that create realistic risk of danger to persons or property (para 33).
 Although the risk need not be ‘probable’ or ‘substantial’, it must be ‘realistic’, not just theoretically possible.
After hearing the remaining witnesses, which included the designated driver from the night, the accused was acquitted. The designated driver told the court that she was driving the vehicle that night and that the accused was passed-out in the back seat. She said she panicked when she was being pulled over because she didn’t have a driver’s licence and switched spots with the accused person. He testified that he was woken up and rushed into the driver’s seat. He said the next thing he knew he was being questioned by police. He testified that he had no intention of putting the car in motion.
 The manner in which he conducted himself in the motor vehicle at the material time does not support the conclusion that there was a reasonable or realistic risk of him putting the vehicle in motion.
 Further, there is no evidence that the accused embarked on an ‘intentional course of conduct associated with the motor vehicle’ which could have put the vehicle in motion. The only evidence is that the accused occupied the driver’s seat of a stationary vehicle which was not running. There is no evidence that the accused performed any act or act which could put the vehicle in motion.
 The risk of the accused putting the vehicle in motion – either deliberately or accidentally – was at most negligible. I find that there was no realistic risk of danger in the particular circumstances of this case. The evidence is not sufficient to establish that the accused was in de facto control of the motor vehicle.
The court acquitted the man.